UP IN SMOKE? : If Past Use of Marijuana Is the New Political Litmus Test, Will Anybody Be Left to Govern?

Even as President Reagan Wednesday announced a new Supreme Court nominee, political observers continued to debate the indiscretions that brought down the last candidate, and to wonder, “Where will it all end?”

Was Judge Douglas Ginsburg’s withdrawal amid revelations that he has smoked marijuana merely the coup de grace to an already shaky candidacy--or does it signal a harsh, perhaps unreasonable, new standard by which those aspiring to any high office are to be judged? If this is the new standard, the question seemed to be, who will be left to run the country?

“It may be getting somewhat absurd,” suggested Joe Cerrell, chairman of the board of the American Assn. of Political Consultants. “I can see them asking (new nominee Sacramento) Judge Anthony Kennedy, ‘Did you engage in premarital sex with someone other than your wife?’ ”

As potential justices and office-holders are put under “a stronger microscope,” Cerrell said, qualified people may well shy away from submitting themselves to such intense scrutiny of their private lives. Cerrell, a onetime adviser to President John F. Kennedy and a political consultant for 30 years, asked, “Is anybody totally free of relatively minor crimes?

Took Box of Raisins

Because he once inadvertently walked out of a store with a 15-cent box of raisins in his pocket, Cerrell asked, does this make him a shoplifter?

More than one observer has suggested that Ginsburg, 41, is a victim of the 1980s. If he, as he has acknowledged, smoked marijuana as a student in the ‘60s and as a Harvard law professor in the ‘70s, so, they say, did hundreds of thousands of other educated, middle-class young Americans.

Whereas, as Patrick Anderson wrote in “High in America,” it was possible to grow up in the America of the 1950s in blissful ignorance of marijuana--”it was something, like flying saucers, that happened to other people”--by the mid-’60s pot-smoking was a rite of the counterculture, a symbol of the times just as much as protests against the war in Vietnam, communes and Bob Dylan singing “Mr. Tambourine Man.”

But this is 1987. Americans are lifting weights instead of dropping acid. Once, Peter Fonda as pot-loving Capt. America raced across the screen in “Easy Rider.” Today, it’s Jane Fonda with aerobics videos. Brownies are out; low-fat yogurt is in. And, apparently, Americans want people who hold offices of public trust to be squeaky-clean.

‘Millenium Madness’

“I call it millenium madness,” said Timothy Leary, 67. “Every 1,000 years people go crazy.” The onetime “high priest of LSD” and Harvard instructor who in the ‘60s said it was time to “tune in, turn on and drop out,” served a jail term in the ‘70s for possession of marijuana. Leary now lives in Beverly Hills and is currently booked at Carlos ‘n Charlie’s restaurant as a stand-up philosopher.

He blames Ginsburg’s troubles on “the loony tune right wing . . . that crazed group who are out of touch with American culture.” But Leary is optimistic about the future--”Every sign is that the Reagan repression has peaked and is in disarray.” And, he pointed out, by 1992 “the overwhelming predominance of American voters are going to be veterans of the summer of love. By 1992, if you say you didn’t smoke marijuana the logical assumption will be that you were a social retard or that you’re lying in your beard.”

Indeed, in the wake of Ginsburg’s confession, two presidential candidates have admitted to having smoked marijuana--Sen. Albert Gore Jr. (D-Tenn.) and former Arizona Gov. Bruce Babbitt. Other politicians who have come forward with confessions are conservative Rep. Newt Gingrich (R-Ga.); liberal Sen. Claiborne Pell (D-R.I.); Sen. Lawton Chiles (D-Fla.) and his Republican challenger, Rep. Connie Mack.

In Joe Cerrell’s opinion, it is going to be “very, very difficult” to find people to run for office if past marijuana use is a barrier. He noted that another presidential hopeful, Sen. Paul Simon (D-Ill.), 59, seemed “almost embarrassed” at having to explain that, while he drank beer, he never smoked pot because it was not available when he was in college.

If past use of marijuana is the yardstick, much of a generation appears to have been disqualified. According to estimates of the federal National Institute on Drug Abuse, one-third of all Americans over the age of 12, and 60% of those from 18 through 25, have tried it at least once.

A New York Times-CBS poll this week found that 58% of Americans do not think that having tried marijuana should disqualify a candidate for the Supreme Court, and 68% of those surveyed felt too much attention is being paid to the private lives of public officials. (In the same poll, however, 46% thought Ginsburg did the right thing by withdrawing; only 32% thought he should have fought for the nomination.)

Jon Gettman, national director of the Washington-based National Organization for Reform of Marijuana Laws (NORML), which seeks legalization, estimates there are 30 million regular marijuana users in the United States and some 70 million have tried the drug at least once.

Bruce Jennings, who studies ethics in government at the Hastings Center, a think tank in Briarcliff Manor, N.Y., called the current intense scrutiny of candidates’ past and present private lives “a recipe for political disaster and . . . for losing the kind of leadership we’re going to need over the next generation.

“I don’t think we should get involved as a country in thinking about who should fulfill high public office in terms of various litmus tests,” said Jennings, who added that he does not view past use of marijuana alone as a cause for disqualifying an office-seeker.

Jennings, who sees this kind of testing as “symptomatic of a drift in the wrong direction,” would rather get at the qualifications and character of a candidate “on the basis of a pattern of public service and a record of past accomplishment.”

What would disqualify a candidate? “Perhaps committing a felony would fall in that category,” he said. “I frankly don’t think smoking marijuana does.”

A Troubling Trend

Although he is “worried and troubled” by the litmus-test trend, Jennings does not see it as indicative of a new societal standard, even though “drug use of all kinds is now perceived as a much more serious social problem” than it was 20 years ago and “people are much less prone to accept experimental life styles.”

Rather, he places responsibility for the shift in emphasis onto the shoulders of the media that, he says, has had to deal with relatively unknown and untested candidates who are generating little hard news.

“Because the public identification of these candidates is so slight,” Jennings said, “their private lives come to loom very large in our perceptions of them and the attention they receive from the media.”

For example, he said, “I don’t believe extramarital affairs were acceptable 20 years ago and suddenly have become unacceptable now. I simply think there was more to worry about and think about in the campaign of John Kennedy, for example, than there was to think about in the campaign of Gary Hart.”

As for marijuana use, he said, “Most people of my generation (he is 38) did not believe the rationale behind marijuana laws made any sense. The law had no meaning. The people who broke those laws were lawbreakers, but they were not criminals. Here, I would insist upon a distinction between those who possessed and used marijuana and those who sold it.”

For a time, at least, he sees qualified candidates shying away from seeking high office. “The political arena is just so dirty,” he said. “The kind of thing you have to expose yourself and your family to is so demeaning.” But power attracts, he said, and in the long term “we’re not really going to be at a loss for candidates.”

In the United States, attitudes about the criminality of marijuana use have tended to be divided along age lines. Many who blithely broke Prohibition laws, which were repealed in 1933, view with shock the younger generations’ proclivity for marijuana.

The Los Angeles Police Department, charged with enforcing the law, does not look lightly on marijuana use, past or present, in selecting candidates for the Police Academy. Ideally, said Capt. Jack Smith, the department would disqualify everyone who had experimented once but, he acknowledged, “Looking at our society, I don’t know if we could find somebody who fit into that category.”

As it is, the Civil Service Commission, not the police department, sets policy for police academy admissions and, said Cmdr. William Booth, its definition of “experimental” use of marijuana allows for as much as 100 times, whereas the police department definition is “two or three times as a juvenile,” perhaps with exceptions for use while in Vietnam.

But “once a person becomes a member of this department,” Booth said, “any usage can be and most often is a firing offense.” (Last year, he said, perhaps 10 of the 7,000-member force were dismissed for marijuana use, either on or off duty). The department and the Police Protective League are now finalizing a program to initiate mandatory random drug testing of all employees during their 18-month probationary period.

To Dennis Curtis, a law professor at USC, the current obsession with the personal lives of public figures is “very weird,” and to bar someone from the high court just for part marijuana use is, in Curtis’ view, “Draconian.”

“Just think if we’d barred everyone who drank bathtub gin in the ‘20s,” he mused. “ . . . our federal benches and state benches would be severely depleted. How many people now between the ages of 30 and 40 smoked dope? My God, it must be an amazing number. Yet all those people are living normal lives and having normal jobs.”

Michael Josephson, a law professor and founder of a Los Angeles-based ethics institute, worried that the storm over Ginsburg’s drug use was an indication that this is becoming “a society of vigilantes.”

U.S. Rep. Howard Berman, (D-Panorama City), who was surprised at the effect the drug use disclosure had on Ginsburg’s nomination, wondered “about the people who are 15 years older (than Ginsburg) and participated in panty raids. Was a panty raid considered theft under the law?”

Democratic Senate candidate Bill Press said he was more concerned with Ginsburg’s views on the right of privacy and the rights of women, gays and lesbians, among other issues, than he was on the nominee’s marijuana history.

Steven Brill, editor and publisher of The American Lawyer, a New York-based magazine that covers the nation’s legal community, called Ginsburg’s drug use “totally irrelevant” and said, “If we had had this information (about marijuana smoking), we would not report it.” Larry Bodine, editor and publisher of the American Bar Assn.’s magazine, said it was his personal belief that it “was impossible to go through the 1960s without trying marijuana.”

However, Bodine said the ABA magazine probably will survey its members to determine their reaction as well as their own drug experiences.

Henry B. Clark II, professor of social ethics at USC, termed the furor over Ginsburg’s drug use “a very primitive form of hysteria” that calls to mind the days when people were punished as heretics for disagreeing with established religion.

To Ramona Ripston, executive director of the American Civil Liberties Union in Los Angeles, what is perhaps most interesting about the new scrutiny is that “one of the reasons Judge (Robert) Bork was rejected is because he did not believe that the Constitution contained a right-to-privacy (provision).” And, Ripston continued, “Every poll that we (the ACLU) do about civil liberties shows that the one area most people are concerned about is the right to privacy. Yet when it comes to public officials we’re not giving them the right to personal privacy.”

Why this super-scrutiny? “It may be,” she said, “that the problems in this society are so great . . . that we’re beginning to look for trivia to focus on instead of focusing on what we do about the deficit and what we do about the declining value of the dollar and what we do about poor people and homeless people. Those problems seem so overwhelming . . . “

But, in the case of Ginsburg, she wonders, “How can you take a 1987 standard of conduct and apply it to the 1960s and ‘70s? What we’re not doing is permitting people to grow. You can do something when you’re young and you would not do the same thing 20 years later. I certainly wouldn’t do the same things today I did when I was 25 or 30. Society is changing and I think the positive side of what happened to Judge Ginsburg is that we will now begin a discussion of what marijuana use meant in the 60s and 70s.”

“It makes a lot of people laugh,” said Arnold Trebach, a lawyer who is founder-director of the Institute on Drugs, Crime and Justice at American University in Washington, “because, in effect, these right-wingers these drug-free zealots, have been hoisted on their own petards. They made the bomb and it blew up on them.

“But there’s another side of it,” Trebach continued. “Here’s another victim of the drug war, a guy (Ginsburg) who had a chance to participate in history at the highest level. There’s no doubt in my mind that he got knocked out for one reason--in his past, he smoked marijuana.”

Trebach, who heads a new privately funded think tank, The Drug Policy Foundation, and is author of “The Great Drug War,” just published by Macmillan, is an outspoken advocate of changing official attitudes toward drugs, who sees Ginsburg’s downfall as “an alarm bell on the madness of the last 70 years of drug policy, one more link in the long chain of irrationalities on the drug issue.”

Trebach, a self-described “peacenik in the drug war,” says he can make no sense out of the line drawn between illegal drugs and legal drugs, including alcohol.

“Ginsburg could have got blasted every day at lunch at the Harvard Faculty Club,” he said, and still been confirmed. “It’s madness.”

He points out that “there have been Presidents of the United States who had a bar in the White House during Prohibition . . . human beings violate the law. We’re imperfect. My question would be, was the violation of such a kind that in some way it would affect his (Ginzburg’s) judgment? I may sound like a Boy Scout but if you told me Ginsburg was a philanderer or a womanizer I’d be more inclined to worry about him.”

But if office-seekers smoked pot two decades ago--indeed, if they were guilty of any number of personal indiscretions--the American public, for the most part, was blissfully unaware. Political consultant Joe Cerrell believes the difference, in 1987, is to a degree “a very sanctimonious Administration that is asking these kinds of questions.”

The Divorce Issue

Cerrell was head of Students for (Adlai) Stevenson in 1952 and recalls, “The big thing was that he was divorced. In some areas we’ve gotten a little more tolerant, a little more liberal. I don’t recall that being much of an issue, (Reagan’s) divorce.”

Kennedy’s Catholicism was “a big issue” in the ‘50s, when he first joined the Kennedy team, Cerrell observed, “but they’re zero issues now, both Catholicism and divorce. On the other hand, we’re ruling this guy out of the Supreme Court for a couple of joints” even while it seems to be “all right for Democrats (hoping to be President) to have done it.”

As for JFK’s storied womanizing, never reported by the media at the time, Cerrell said only, “I could tell you some stories, which I won’t. But the President had sensational relations with the news media. Nobody cared. We chuckled, got a big kick out of it.”

Times Staff Writer Garry Abrams contributed to this story.